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Phillips v. Luckygunner, LLC

United States District Court, D. Colorado

June 17, 2015

SANDY PHILLIPS, individually and as surviving parent of Jessica Ghawi, decedent; and LONNIE PHILLIPS, individually and as surviving parent of Jessica Ghawi, decedent. Plaintiffs,


Richard P. Matsch, Senior District Judge

Although the time sheet billing method has become increasingly disfavored by those who pay for legal services, controlling precedent commands that counsel and trial judges use it in following the “lodestar” method as the starting point for determining a reasonable fee to be awarded pursuant to fee-shifting statutes. That is reinforced by D.C.Colo.LCiv.R 54.3. Appropriate adjustments may be made as fairness may require under the circumstances of the case.

As a result of the dismissal of all of the claims made in the amended complaint, removed from the District Court for Arapahoe County, Colorado, in the exercise of diversity of citizenship jurisdiction, defendants LuckyGunner and Sportsman’s Guide have moved for attorney’s fees and costs pursuant to C.R.S. § 13-21-504.5(3) and § 13-17-201. Defendant Brian Platt, d/b/a BTP Arms moved under C.R.S. § 13-17-201. Those statutes provide as follows:

The court, upon the filing of a motion to dismiss pursuant to rule 12(b) of the Colorado rules of civil procedure, shall dismiss any action brought against a firearms or ammunition manufacturer, importer, or dealer that the court determines is prohibited under subsection (1) or (2) of this section. Upon dismissal pursuant to this subsection (3), the court shall award reasonable attorney fees, in addition to costs, to each defendant named in the action.

C.R.S. § 13-21-504.5(3).

In all actions brought as a result of a death or an injury to person or property occasioned by the tort of any other person, where any such action is dismissed on motion of the defendant prior to trial under rule 12(b) of the Colorado rules of civil procedure, such defendant shall have judgment for his reasonable attorney fees in defending the action....

C.R.S. § 13-17-201.

The named plaintiffs in their opposition ask that these motions be denied on several grounds. They say that the action could have ended expeditiously by settlement if the defendants had initiated settlement discussions. That is a strange plaint to make given the allegations of the amended complaint accusing the defendants of a causal relationship with the criminal acts resulting in the deaths and injuries in the armed attack on the moviegoers at the Aurora Century 16 movie theater in Aurora, Colorado on July 20, 2012. The injunctive relief requested is to stop all the defendants’ commercial activities until their business practices have been changed and approved by the court. There is nothing in the record to indicate that the plaintiffs or the Brady Center, the apparent sponsor of this case, made any attempt to persuade the defendants to make any alterations of those practices before bringing this highly publicized lawsuit. It would be highly unlikely that the defendants would seek to emasculate their businesses to conform to an undefined standard of care that would have prevented a purchaser of their products from using them in a barbaric assault on innocent people in an entertainment venue.[1]

The named plaintiffs have active roles in the Brady Center as shown in the attachments to LuckyGunner’s reply and in press releases from the Brady Center heralding the filing of their lawsuit and identifying three of its lawyers as representing the plaintiffs. Two of those attorneys attended oral argument on the defendants’ motions and signed pleadings filed on behalf of the plaintiffs by the attorneys from Arnold & Porter.

It is apparent that this case was filed to pursue the political purposes of the Brady Center and, given the failure to present any cognizable legal claim, bringing these defendants into the Colorado court where the prosecution of James Holmes was proceeding appears to be more of an opportunity to propagandize the public and stigmatize the defendants than to obtain a court order which counsel should have known would be outside the authority of this court.

LuckyGunner has made the argument that because this civil action was a meritless “political lawsuit, ” plaintiffs’ counsel should have joint liability for the fees and costs. The procedural requirements under Fed.R.Civ.P. 11(c) have not been followed and for this court to take the initiative to issue an order to show cause under Rule 11(c)(3) would prolong this matter which is on appeal. Ruling now on these fee applications may enable any disagreements to be added to the issues on appeal.

There is no dispute that the Colorado statutes cited above provide for recovery of the moving defendants’ reasonable attorney’s fees incurred in defending this action. By employing the mandatory word “shall, ” those statutes require that fees be awarded. It may be presumed that whatever hardship is imposed on the individual plaintiffs by these awards against them may be ameliorated by the sponsors of this action in their name.

Plaintiffs’ counsel voiced the suspicion that non-parties have provided financial support for the defense of this action. Counsel for the defendants assert that their clients are responsible for these fees and it is irrelevant whether their need for legal representation to defend their businesses may have been supported by others.

The court is responsible for determining the reasonableness of the fee requests and to meet that responsibility the detailed time reports and billing rates have been reviewed, giving consideration to the plaintiffs’ objections and comments.

Initially the plaintiffs contend that the amounts claimed are disproportionate to the issue and characterize the defense as a “Cadillac” approach to litigation. This was an all conceivable claims attack on these internet sellers, attempting to destroy their legitimate businesses and invalidate the federal and state statutes protecting them. Defeating this action at the threshold was important not only for the continuation of their business model, it avoided the probability of negative publicity attendant to the discovery opportunities available under the procedural rules. Those who ignite a fire should be responsible for the cost of suppressing it before it becomes a conflagration. The Brady Center may be pursuing a righteous cause, but the defendants should not have to bear the burden of defending themselves in this inappropriate forum.

The lodestar analysis follows.

Defendant Platt’s request

Platt, a citizen of Maryland, employed the services of two law firms – Sasscer, Clagett & Bucher, a Maryland law firm, and Messner Reeves, LLP, a Denver law firm. Platt seeks attorney’s fees in the following amounts:

$22, 480.00 for fees billed by Sasscer, Clagett & Bucher, and
$9, 645.00 for fees billed by Messner Reeves.

Platt seeks costs and expenses in the following amounts:

$1, 234.99 for costs and expenses billed by Sasscer, Claget & Bucher, and
$209.90 for expenses billed by Messner Reeves.

(Zuber Aff. and Montoya Aff.). The total amount of attorney’s fees and costs/expenses requested by Platt is $33, 569.89. Platt also seeks payment for approximately six hours of time incurred in filing the subject motion.

Platt states that he paid for all of the legal work performed by his counsel and no other entities were involved in its defense of this action.

The affidavit of Phillip R. Zuber, a partner in the Sasscer firm [Dkt. #55-2], says that he devoted 69.60 hours of work to this action, and billed his time at an hourly rate of $300. The Sasscer firm also employed the services of a paralegal, who spent 12.8 hours on this action, billed at an hourly rate of $125. Zuber’s affidavit generally describes the work that he and the paralegal performed.

The affidavit of Bruce Montoya, a partner in the Messner Reeves firm [#55-1], says that he devoted 15.20 hours of work on this action, billing his time at the hourly rate of $300. Two associates in that firm also worked on the case. Their time (19.5 hours and 4.10 hours) was billed at an hourly rate of $225.

Platt’s attorneys did not provide their billing records, but those records were provided to plaintiffs’ counsel and are attached to the Plaintiffs’ response [Dkt. #60-1 and #60-2].

The cost and expense items requested by Platt are described in the affidavits and invoices. Platt did not submit a bill of costs pursuant to D.C.Colo.LCiv.R 54.3, so there is no concern about a duplicate cost award.

The Plaintiffs do not question the hourly rates charged by Platt’s attorneys. Those billing rates are reasonable.

The plaintiffs object to redactions in these records and those of other counsel. Given the professionalism shown by all of the counsel for the defendants the court does not question the propriety of those redactions.

There is some duplication of effort. Three Platt lawyers charged a total of 3.1 hours for reviewing the complaint; three lawyers charged a total of 3.5 hours for reviewing the motion to dismiss; two attorneys charged a total of 4.3 hours for reviewing the co-defendants’ motions, and three attorneys charged a total of 1.4 hours for reviewing the United States’ notice of intervention and supporting brief. On the day of the motions hearing (3/16/2015), three attorneys for Platt (Zuber, Montoya and Whitney) billed a total of 13.7 hours for time associated with that hearing (which lasted 37 minutes).

Some duplication is unavoidable when the party employs local counsel and out-of-state counsel. While the Maryland lawyers were admitted to the bar of this court, the assistance of local counsel is prudent given the importance of an awareness of the practices of individual judges.

While it is common practice for law firms to include paralegal time in billing clients, their time is essentially time spent on administrative tasks and not ...

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